Citation Nr: 1807673 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 09-22 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for diabetes mellitus secondary to hepatitis C. REPRESENTATION Veteran represented by: Robert V. Chisholm, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1978 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a video conference hearing in May 2010 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In July 2010, the Board, in pertinent part, found that new and material evidence had been received to reopen the Veteran's claim of service connection for hepatitis C and diabetes mellitus and remanded the reopened claims for further development. In September 2014, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). In March 2016, the Board issued a decision denying service connection for hepatitis C and diabetes mellitus; the Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a March 2017 Order, the Court, pursuant to a Memorandum Decision, vacated the Board's March 2016 decision and remanded the case for action consistent with the Memorandum Decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the March 2017 Memorandum Decision indicates that a remand is required in this case due to perceived deficiencies within the December 2014 VA examination that was relied on in the Board's March 2016 decision. The Veteran claims that his currently diagnosed hepatitis C was caused by a blood transfusion he received during surgery on his lungs in service. He noted that he has not had any surgeries or blood transfusions since that time. He also believes his diabetes mellitus II was secondarily caused by his hepatitis C. A December 2014 examiner found that the Veteran's hepatitis C was less likely than not related to service because the "postoperative notes were negative for an indication of and/or necessity for intraoperative anesthesia and/or postoperative blood transfusions, blood products and/or improper use of needles." However, the surgical record indicates that the Veteran was administered several anesthetics as well as an IV. The Court found it unclear "how a lack of a notation regarding improper needle use on the surgical report amounts to negative evidence given that the understanding of proper needle use was presumably different in 1981." A clarifying opinion should be sought. The issue of service connection for diabetes mellitus on a secondary basis is inextricably intertwined with the mater of service connection for hepatitis C. Therefore, both claims must be remanded. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran if there are any other records he would like to have considered in connection with his claim. Any identified records should be sought. 2. After any additional records are associated with the claims file, obtain an addendum medical opinion. The claims file should be returned to the VA examiner who provided the December 2014 opinion, if available. If that examiner is not available, an opinion should be obtained from another qualified person. The reviewer should provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or more) that any diagnosed hepatitis C is due to service. The reviewer should indicate whether the chest surgery in 1981, during which among other things, the Veteran was given anesthesia intravenously, would have likely involved exposure to hepatitis C risk factors, and if so whether his current hepatitis C is as likely as not related to that in-service risk factor/s. In this regard, the reviewer should address whether given the standard of care for the use of needles during surgery in 1981, (e.g. in the administration of anesthetics) in retrospect could have exposed the veteran to the hepatitis C virus. A fully articulated medical rationale for any opinion expressed should be set forth in the medical report. The reviewer should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case. If any requested opinion cannot be provided without resort to speculation, the reviewer should so state and explain why an opinion cannot be provided without resort to speculation. 3. After completion of the above, the AOJ should readjudicate the claim on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).